Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

a court can find that a defendant willfully violated the Act based on the speech’s potential to cause a clear and present danger, not on whether the speaker actually intended to obstruct the military; much less whether he even succeeded in doing so. On the other hand, a speaker who blatantly attempts to obstruct the military can sidestep the Act if his statements do not present a clear and present danger. What sense does that make?

On the same day as the Court rendered its decision in Schenck, it also decided two other cases, Frohwerk v. United States and Debs v.United States.4 The Court made no mention of “clear and present danger” in those opinions, but echoed the theme from Schenck that speech can be restricted based on its potentially inflammatory effect. In Frohwerk, Jacob Frohwerk and Carl Gleeser were convicted under the Espionage Act of conspiring to cause “disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States.”

Frohwerk and Gleeser had made the foolish mistake of publishing in the Missouri Staats Zeitung, a German periodical, articles condemning World War I and exposing the hardships faced by draftees. Justice Holmes, again writing for a unanimous Court, upheld the convictions, stating that the articles had been circulated “in quarters where a little breath would be enough to kindle a flame.”

In Debs, the famous Eugene Victor Debs, national leader of the Socialist Party and 1912 presidential candidate, was convicted of disrupting the recruitment service with a speech he gave criticizing the war and the draft, and telling his audience that it was “fit for something better than slavery and cannon fodder.” The Court, again via Justice Holmes, unanimously upheld the conviction.

Holmes was the ultimate legal positivist, believing that law is solely man-made. He argued that rights not written down do not exist. Remarkably, he did not believe that Natural Law established, protected, and mandated the freedom of speech, nor did he believe that Natural Law existed in the first place.

Believe it or not, prosecutions under the Espionage Act got more ridiculous. The Reverend Clarence H. Waldron was sentenced to fifteen years in jail for distributing literature stating, “If Christians [are] forbidden to fight to preserve the Person of their Lord and Master, they may not fight to preserve themselves, or any city they should happen to dwell in.”5 The government, in this case, argued that Waldron’s statements had obstructed the recruitment service, and the Court agreed.

The case of Robert Goldstein is perhaps the most shocking, however. Goldstein produced a film entitled The Spirit of ’76, a historical film that happened to have portrayed the Wyoming Valley Massacre, in which British soldiers abused and killed women and children. Goldstein was sentenced to ten years in prison because the government satisfied a federal judge and jury that his factual account could promote mutiny in the military because it “negatively” portrayed Great Britain, an American ally in World War I.6 So, the government saw fit to prosecute someone who accurately reported on a 150-year-old event in which the British committed atrocities against American women and children, because it believed that Goldstein’s film would somehow jeopardize the American war effort almost 150 years later.

Unfortunately, the many horror stories of this time period are not made up, nor would it be possible to fabricate credibly such absurdity. During this era of fear, the government simply sought to smother dissent, and cleverly used the Espionage Act to shield itself.

Woodrow Wilson, the President of the United States during this period, was a racist who openly supported segregation and did everything in his power to preserve it.7 When he took office, one of his associates stated that “Negroes should expect to be treated as a servile race.”8 He also worked to prevent women’s suffrage, even though his efforts ultimately failed. He opposed even legal immigration.9 It is not at all shocking that someone with such a track record on human rights would sign a bill limiting the freedom of speech, and prosecute those who challenged him.

Getting Smarter

Over time, the Supreme Court of the United States came to its senses, ultimately rejecting federal and state government efforts to quash the freedom of speech. In Abrams v. United States (1919), the Supreme Court, in typical fashion, upheld the convictions of Russian, socialist immigrants prosecuted under the Sedition Act of 1918, a law similar to the Espionage Act of 1917.10 Justice Holmes, however, in an impressive about-face, wrote an inspired dissenting opinion in which he introduced into First Amendment discourse the element of the “free trade” or “marketplace” of ideas.

According to Holmes’s new theory of free speech (he must have been searching for new theories), the search for truth, knowledge, and wisdom is more likely to end successfully if the government refrains from trying to control the debate. Holmes also instructed that Americans “should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.” Holmes believed that speech should be punishable only if it creates, and is intended to create, immediate harm before there is time or opportunity for counter-speech to avert such harm. Therefore, Holmes would have reversed his earlier opinions that upheld convictions of those denouncing the war, because the literature and speeches at issue had no chance of causing immediate harm. Stated differently, only if the speech being prosecuted failed in its purpose could it be entitled to constitutional protection.

Later, in Whitney v. California (1927), the Supreme Court upheld the constitutionality of California’s Criminal Syndicalism Act, which made it a crime knowingly to become a member of any organization that advocates “the commission of crime, sabotage, or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.”11 The law was enacted during the Red Scare of the 1920s, when fear of Communism was widespread. The Court held that the Act was neither an unreasonable nor